Allegations of domestic violence are considered to be a priority in the New York court system. If needed, one of our Queens county divorce lawyers can help. That’s one of the reasons why the legislature gave both the criminal courts and the family courts concurrent jurisdiction to hear domestic violence cases through the New York Family Court Act section 812. A wide variety of acts are considered to be domestic violence in New York. Those include but aren’t limited to:
Mandatory investigation and arrest
If a call is made to 911 to report a domestic violence incident, police are required to investigate. The parties will be separated and put in different rooms. Police will then get each person’s version of events. An arrest is mandatory if the abuser is a member of your family or household. Mandatory arrest also applies when the parties have been involved in an intimate relationship. Incidents requiring mandatory arrest include:
If a misdemeanor offense has been made, an arrest might be discretionary, especially if a victim advises investigating officers that he or she does not want an arrest to be made. If both people committed misdemeanors on each other, the investigating officers might try to determine who the primary aggressor was. New York law allows them to arrest that person. There is no primary aggressor law in felony cases.
Sometimes a person can be wrongly accused of violating New York’s domestic violence statute. Here are some of the most common defenses.
A wide range of sentences apply to domestic violence convictions. For example, third-degree assault is classified as a Class A misdemeanor punishable by not more than 364 days in jail and a fine not to exceed $1,000. First degree strangulation is classified as a Class C felony punishable by up to 15 years in prison and a fine of up to $15,000. If charges in these types of cases can’t be dismissed, they can almost certainly be reduced pursuant to a plea negotiation. Suspended sentences or deferred prosecution might be available.
Restraining orders in family court
In a criminal case, the court might enter an order of protection against the defendant, but the law doesn’t require a person to be charged criminally for the relief to be granted. Appropriate relief can be obtained through the family court pursuant to the New York Family Court Act section 841, et. seq. If a family court judge determines that there is a sufficient basis for an order of protection, he or she will issue it without notice of the proceeding to the respondent. Another court date is set, and the respondent is served with a copy of the order and a summons for the next court date. If after a hearing, the judge decides that there is sufficient cause for a longer order of protection, it can be extended for up to two years.
Restraining orders in criminal court
When a person has been charged with a criminal offense, a temporary restraining order might issue as a condition of either bail bond or sentencing. Criminal courts can issue orders of protection that last for more than two years. In the event of a felony conviction, the order can be entered for up to eight years. Whether the petition is brought in family court or criminal court, the same defenses as set forth above can apply.
The burden of proof
In a family court case, the petitioner need only prove the grounds for his or her petition by a preponderance of the evidence. That means that his or her version of events is more likely true than not true. In a criminal case when a restraining order is issued as part of a sentence, the grounds must be shown by either a plea agreement or beyond a reasonable doubt upon a finding of guilty in a bench or jury trial.
Domestic violence cases are emotionally charged. Sometimes the allegations are completely false, especially when they arise during the course of a divorce or child custody proceedings. A person’s career and freedom can be negatively impacted as a result of a domestic violence conviction. We’re experienced and aggressive criminal defense attorneys, and we hold the State of New York to its burden of proof. Don’t blindly plead guilty to a domestic violence offense or consent to an order of protection being entered against you. In most cases, defenses and alternatives are available. Contact us right away after any domestic violence arrest. After carefully listening to you, we’ll advise you of all of your options. You can then make an educated decision on how you wish to proceed.
Todd is a miracle worker who will work tirelessly for you and your family. He is one of the few attorneys i've met - who I earnestly trust to protect me, and who I am happy to refer to our friends and fellow family members. The Spodek Law Group is someone you want on your side, because they will treat you just like family. Todd and his team are available 24/7, and they always answered our calls. Even when we were being irrational, and crazy - they were calm and super helpful. Just call Todd. He gives you a free consultation and is very understanding.- Donna & Robert
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